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harassment. Even in cases when such
behavior doesn’t rise to the level of illegality, it is wrong and counterproductive.

9. The harasser was a customer,
not an employee.If a manager sees,
hears or otherwise becomes aware of
harassing behavior by a nonemployee
with whom an employee interacts, he
or she is obliged to respond. That’s why
supervisor training must include “in the
moment” suggestions for how to react to
unacceptable conduct as it happens.

10. The harasser and harassment
target belong to the same protected
group. Individuals of a particular protected group can unlawfully harass members of the same group.

11. Alcohol made the harasser doit. The EEOC lists alcohol as a risk fac-tor that makes harassing behavior morelikely to occur. Blaming the conduct onJack Daniels or Jim Beam is never a via-ble defense.12. The harassment was notunwelcome.The legal definition ofharassment includes the term “unwel-come.” That said, the fact that someonetook part in the conduct about which theycomplain does not necessarily mean he orshe welcomed it. While such participationis a relevant factor in determining “wel-comeness,” it is only one factor—and itcertainly does not mean that the behav-ior was acceptable from an employer’sperspective.Consider this example: If twoemployees were having sex on a desk,would you ask whether that conductwas welcomed by one or both parties?Of course not, because the behavioris objectively unacceptable. The sameholds true when it comes to sexualbanter, racial “jokes” or the like.13. The offended person was nottargeted. It is not necessary that harass-ing behavior be directed at an individualfor him or her to make a viable com-plaint. If someone witnesses or otherwisebecomes aware of an incident of harass-ment, he or she may raise concerns. Thinkof harassment like pollution. If it is in theair that an employee breathes, he or shehas the right to speak up about it.Spend time training your supervisorsto make sure they don’t use one of theseflawed rationales to defend indefensiblebehavior.

Jonathan A. Segal is a
partner at Duane Morris in
Philadelphia and New York
City. Follow him on Twitter
@Jonathan_HR_Law.